Maryland Commission on Capital Punishment

Findings & Recommendation

The Maryland Commission on Capital Punishment was created by an Act of the Maryland General Assembly during its 2008 Legislative Session. The Commission's purpose was to study all aspects of capital punishment as currently and historically administered in the state and to make recommendations regarding its future use.

The law that created the Commission called for it to be comprised of 23 appointees, selected by the Governor, the Speaker of the House of Delegates, the President of the Senate as well as those specifically charged in the statute. Former U.S. Attorney General Benjamin Civiletti was appointed to chair the Commission. Commission members included prosecutors, police officers, members of the clergy, legislators, and murder victims' family members.

The Commission held five public hearings where testimony from experts and members of the public was presented. The Commission also held five additional meetings where the testimony and evidence presented to the Commission was discussed and later voted upon. Detailed voted counts on each of the findings of the Commission are contained in the final report.

The Commission's findings, many near unanimous, from the report are as follows:

Due to a lack of research on socio-economic disparities in Maryland, no conclusion was reached on this matter.

The costs associated with cases in which a death sentence is sought are substantially higher than the costs associated with cases in which a sentence of life without the possibility of parole is sought.

While both life without the possibility of parole and death penalty cases are extremely hard on families of victims, the effects of capital cases are more detrimental to families than are life without the possibility of parole cases. An increase of the services and resources already provided to families of victims was recommended.

Despite the advance of forensic sciences, particularly DNA testing, the risk of execution of an innocent person is a real possibility.

While DNA testing has become a widely accepted method for determining guilt or innocence, it does not eliminate the risk of sentencing innocent persons to death since, in many cases, DNA evidence is not available and, even when available, it is subject to contamination or error at the scene of the offense or in the laboratory.

There is no persuasive evidence that the death penalty deters homicides in Maryland.

The overriding recommendation – the abolition of capital punishment in the state of Maryland.

In a much anticipated decision, the Maryland Commission on Capital Punishment voted 2-1 to recommend that the state’s death penalty system be abolished. Over the past four months, the Maryland Commission has heard the testimony of 85 people including professional experts, a former Maryland death row inmate later proven innocent, the families of murder victims, as well as former and current law enforcement agents. Taken as a whole, the overwhelming message conveyed by these witnesses was that the system has broken down, is fraught with ambiguities and contains inevitable risks that simply cannot be rectified.

A Summary of Expert Testimony Before the Maryland Commission on Capital Punishment

On Innocence:

Kirk Bloodworth told his story of being falsely accused of raping and murdering a nine year old girl and sentenced to death by the State of Maryland. “If it happened to me it could happen to anyone.” Multiple courts affirmed his conviction before he was finally exonerated thanks to his diligence and the persistent faith of his innocence shown by his attorney Bob Morin. Barry Scheck, a co-founder and co-director of the Innocence Project at the Benjamin N. Cardozo School of Law. Scheck said, “Having worked in this field for thirty years, perhaps the most significant lesson I have learned is that in matters of crime and justice humility is important because even the most experienced among us are often wrong. Indeed, because every one of us is human and all of us are actors in fact-finding missions, if just one of us makes an error, jumps to a conclusion, or acts on a false assumption, an innocent man can be condemned to a guilty man’s fate.” Mistakes will be made, despite the best efforts of all involved. He spoke about post-conviction DNA and its usefulness in sometimes reversing mistakes made. 220 men and women have been exonerated by post conviction DNA nationwide. Patrick Kent, the chief attorney of the Forensic Division Office of the Public Defender in Maryland. Kent underscored the problems with physical evidence used in capital and non-capital cases. He described the corruption of the Baltimore Crime Lab which led to the firing of the lab’s director. In one instance a Baltimore County serologist misrepresented evidence in court. In another incident, a state firearms expert, who testified in the trail of Flint Gregory Hunt, later executed by the state, who-fabricated his credentials and offered inaccurate testimony. “You can have a perfect science but it will always be in the hands of imperfect people.”

“The death penalty appears to be broken and cannot be fixed.” -David Baldus

On Cost:Jonathan Gradess, the executive director of the New York State Defender’s Association. He explained the Urban Institute Study on the cost of the death penalty in Maryland. Maryland taxpayers have spent at least $186 million between 1978 and 1999 on death penalty cases alone. The average capital-eligible case in which the death penalty is not sought, Maryland taxpayers pay more than $1.1 million over the life span of the case. That is broken down for $870,000 for prison costs and $250,000 for court costs. The average capital eligible case with a death notice costs $1.8 million over its entirety. That is $670,000 more than a non-death-notice case. That is broken down as $970,000 for prison costs which is approximately the same as the prison costs for a case that is a capital-eligible case without a death notice. The cost triples with court expenses at up to $850,000 per case. In a capital-eligible case that results in a death sentence the cost increases another $1.2 million. So the total cost to the Maryland taxpayers is approximately $3 million per case. That is $1.9 million more per case than a no-death-notice case. The prison costs in a death sentence case are $1.3 million and the court costs are $1.7 million.Jonathan also said that eliminating the death penalty would not make Life Without Parole (LWOP) more costly because the procedural protections applicable in death penalty cases and their attendant costs do not translate to LWOP cases.Ken Stanton, a research associate at the Jacob France Institute at the University of Baltimore and an associate professor of finance and economics at Coppin State University, confirmed the accuracy of the Urban Institute Study. He stated that the methodology of the study was sound. He also said that the study likely underestimated the real cost of the death penalty. He stressed that the death penalty was using resources that could be used in other ways in the criminal justice system. “Economists call this a complete waste.”

“Two juries were wrong. Two judges were wrong. The state of Maryland was wrong…I am not here because the system worked. I am here because a series of miracles happened.” –Kirk Bloodsworth

On Victims:

Bonnita Spikes, a Maryland resident whose husband was murdered fourteen years ago, gave witness to the continued debilitating effects of that tragedy on her family. She works with other families who have suffered like hers. She pointed out that, without resources, families are unable to obtain the support services they need in the wake of a violent crime. Kim Armstrong, a mother who had a son go through the juvenile justice system and then had a child murdered, said, “I don’t know who killed my son, as his murder remains unsolved. If they ever find the killer or killers, I would like to see them sit in prison and really confront what they have done. Eric (the murdered son) is gone and nothing can bring him back to me. Executing them only means that someone else’s child, someone else’s parent, someone else’s brother would grieve like I and my other two children have grieved. Their loss would feel no different if the killing was done behind closed doors by the government then mine did when it happened on the street.” She goes on to say, “In Baltimore City, there are whole communities torn and struggling with violence. Yet, so little help is available, particularly to children who have seen or experienced violence.” She called for more resources to be put into stopping the cycle of violence.Lisa Delity, sister to a murdered FBI agent Mike Miller read a letter to the Commission that 49 Maryland victims’ family members signed. “To be meaningful, justice should be swift and sure. Life without parole, which begins immediately, is both of these; the death penalty is neither…The death penalty is a broken and costly system. Maryland doesn’t need it and victims’ families like ours don’t want it.”

On Arbitrariness:Bill Brennan, a Maryland defense attorney testified that he has represented a lot of bad people and cannot reconcile why some are condemned to death and others are not. Judy Catterton, a former prosecutor from Montgomery County and defense attorney who has worked on several Maryland death penalty cases said, “I would like to point out two things about Flint Gregory Hunt. One is the comparison between Hunt and Calhoun, from my perspective, my first and my last death penalty cases. Calhoun killed a policemen and a security guard, execution style so they wouldn’t be witnesses. He had a terrible record. He is doing a life sentence. Hunt killed a police officer while he was trying to escape arrest. He had a modest criminal record. He was executed. I can give you an opinion as to why there were different outcomes, what I can’t do is justify the different results.” Andy Sonner, a former State’s Attorney for Montgomery County, now a retired judge from the Maryland Court of Special Appeals. He said that prosecutors are influenced by a host of competing factors and pressures that determine which cases should be death cases, and that creates arbitrariness in sentencing that simply cannot be reconciled with the need for consistency and fairness. “The death penalty is a state-not a county-law, and its high profile nature creates a state interest in uniformity that we simply cannot meet. Uniformity in death sentencing directly contradicts with prosecutorial discretion, which is otherwise an important hallmark of our system in other kinds of cases.”

On Disparities:Ray Paternoster, a professor from the University of Maryland whose 2003 race study found great disparities in the use of the death penalty between counties. Certain counties were more likely to seek the death penalty. He also found that there is a higher chance that prosecutors will seek the death penalty when the victim is white. In February of 2004, Paternoster released a supplement report which states, “It has (also) been argued that since Baltimore County’s prosecutors seek the death penalty in a high proportion of its death eligible cases. [t]that this would mitigate against any race of victim bias. We found no evidence of this. After controlling for numerous case characteristics we found a large race of defendant effect in Baltimore County. The chance that the state’s attorney would seek a death sentence was about twice as high if the defendant was black rather than white.”David Baldus, a professor at the University of Iowa College of Law and a leading expert in the nation on the role race plays in capital punishment confirms Paternosters findings. In a Supreme Court case McKlesky v. Kemp, Baldus’ research was brought before the court. The court assumed the validity of Baldus’ study and found that racial bias in death sentencing is inevitable. Baldus also noted that of the ten men who have either been executed in Maryland or remain on death row all had white victims even though the 80% of murders in Maryland have a black victim.

On Counsel:Harry Trainor, a Maryland attorney described the challenges presented in providing effective assistance of counsel. Maryland has the second lowest pay in the country for panel attorneys. Pay for lawyers are capped at $20,000 for a case instead of $250,000 from the federal system. The pay isn’t enough to cover overhead charges. Lawyers forgo salaries to take these cases. Experts and some firms are refusing to take cases because of low compensation. “A system that puts a person’s life on the line cannot hang its hopes on the sheer luck that a few good Samaritans will always be there and be willing to make these kinds of sacrifices.” He continues by explaining that this is not a case of greedy lawyers. “The reality is that death penalty cases are so complex and so labor intensive that low-paid attorneys actually have to choose between putting on an adequate defense and losing money on the case.”

“After previously supporting its use in some circumstances, I have come to strongly believe that the death penalty serves no useful purpose…for the safe and effective management of prisons.”-John Clark

On Prison Safety/Killings of Corrections Officers:Robert Johnson, professor at the School of Public Affairs at American University. He explains that self-interest drives “lifers” to avoid trouble in prison because it could jeopardize the few luxuries they may have such as a stable assignment to a particular cell that he can call his house; a job; a program of study; television; and regular access to the yard for exercise and fresh air. If prisoners break the rules these privileges can be taken away and the prisoner may find himself in solitary confinement. John Clark, a 35 year corrections professional who agreed with Johnson saying that when a prisoner breaks a rule or acts violently, their lives can be controlled down to the minutest detail. Their life becomes harsher, more confined, and more controlled.

Will eliminating the death penalty make it harder to get LWOP pleas?Cary Hansel, a defense attorney, shared several stories of people who plead guilty, when innocent, to avoid the death penalty. Several other witnesses testified that it is unethical to use the death penalty as a bargaining tool.

On Deterrence:Brian Frost, professor of Justice, Law, and Society at American University. “There is, in short, no convincing evidence that the death penalty deters homicide…This had become clear by the mid-1980s, and it has been confirmed and re-confirmed is subsequent analyses.”

On the harshness and finality of LWOP:Robert Johnson: “The life of the lifer is a repetitive, bleak, and lonely existence, and that is on the good days. A life confined to prison is not so much a physical punishment – prisoners are given food and shelter – as it is an existential nightmare of meaningless days and nights without end. The prisoner faces a lifetime of boredom, doubt, and anxiety punctuated by piercing moments of insight into his or her failings as a human being…Note that fully ten percent of the prisoners in all – gave up their appeals and “volunteered” to be put to death rather than submit to a life of prison.”